ALJDEC decisions subject to certification as final

23A-235-210201-AGR · Department of Agriculture · 2023-11-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Cooper DeWitt,

appellant.

No. 23A-235-210201-AGR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 13, 2023 and October 24, 2024.

APPEARANCES: Assistant Attorneys General Deanie Reh, Esq. and James Rolestead, Esq. appeared on behalf of the Arizona Department of Agriculture, Animal Services Division (“Department”) with Luis Romero, Richard Shore, Manny Angulo, and Terry Lincoln as witnesses. Cooper DeWitt (“Appellant”) appeared on his own behalf.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Department.

FINDINGS OF FACT

Background and Procedure

On or about April 10, 2023, Appellant issued a demand letter to the Department regarding the proceeds of a sale of twelve (12) calves.

On April 19, 2023, the Department issued a Denial Letter to Appellant which declined his request for payment.

On June 01, 2023, Appellant submitted a formal appeal request to the Department.

On June 26, 2023, the Department referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on August 18, 2023. Per the July 12, 2023, Notice of Hearing the issues to be determined are whether the Department unlawfully or otherwise improperly withheld the proceeds of the sale of seized livestock, less expenses incurred, per Arizona Revised Statute (“Ariz. Rev. Stat.”) §§ 3-1371 and 3-1404.

Hearing Evidence

Appellant testified on his own behalf. The Department called Luis Romero, Richard Shore, Manny Angulo, and Terry Lincoln as witnesses, and submitted Exhibits 1-6 and 10-12 into the record. The Notice of Hearing was also admitted into the record as its own exhibit. The substantive evidence of record is as follows:

Appellant and his family own the Dewitt Ranch located in Rio Rico, Arizona.

For several years there have been multiple investigations into the Dewitt Ranch by local law enforcement and the Department, ranging from trespass to overstocking allegations. In November 2019, displeased with the Department’s response or lack thereof to his report of near 300 cattle missing, Appellant published an editorial in the local newspaper in opposition of the Department. Since that time the relationship between the parties has been fairly contentious.

In 2021, Appellant wound-down his cattle ranch business due to prolonged drought and lack of funds to keep his livestock.

On or about April 20, 2021, Appellant brought 12 freshly branded calves; 9 steers and 3 heifers, for self-inspection to the Willcox Livestock Auction in Willcox, Arizona. An undisclosed number of cows were also brought to auction. The calves were approximately 5 months old. None of the calves would “mother up” to any of the cow(s). Tail hairs were pulled from the calves and the animals were subsequently sold for $6,038.36 at auction.

The proceeds of the sale were impounded and placed in a trust account.

On April 20, 2021, and April 22, 2021, Appellant was advised that the sale proceeds would be released to him, within the statutory period less applicable fees, once he established ownership of the calves at issue. Specifically, Appellant was advised to either (1) provide the Department with DNA samples from the alleged mother cow(s), or (2) provide affidavits from all neighboring ranches that waive claims of ownership for the calves at issue.

On an unknown date, Appellant asked the Department to reveal and/or obtain the identity of the purchaser(s) of the calves, as well as the purchaser(s) of the alleged mother cows, so that Appellant could reunite them to show the Department that the calves would “mother up.” Appellant’s requests were denied.

Appellant declined to participate in DNA testing.

In May 2023, Appellant issued the following written statement, in pertinent part, to the Department:

The cattle in question are without a doubt mine. No one has ever questioned ownership, however the state agents saw this as an opportunity for harassment. No attempt was made to mother the animals properly, instead they were sold separately and the money was seized. I know this was the case because a week later at the exact same sell barn, I sent twelve unbranded cattle and instead of seizing the cattle that didn’t pair up they sent the calves back to me.

The actions taken by department of agriculture are a retaliation to the articles published about their corruption and ineptitude. Evidenced by everything they have done since the articles started, harassment, libel, negligence, defamation of character, creating their own policies without due process, illegal search and seizure.

As I am sure this is a joke since the lack of due process in the matter I would suggest the money be returned and an apology made.

Attached to the correspondence, Appellant included a Notice of Gathering and Waiver of Ownership, signed April 22-27, 2021, from Morning Star Ranch LLC, PM Ranch, Sonoita Creek Ranch, Oro Blanco Ranch, and KZ Ranch, as well as a copy of his Brand Certificate.

At least 6 of Appellant’s other neighbors refused to sign waivers on his behalf.

One neighbor offered to accept a telephone call from the Department whereby he would “tell them I doubt any of those cattle are mine” but also refused to sign a waiver for Appellant.

Additional Evidence

Another ranch’s calf sale proceeds were also impounded on April 20, 2021, because ownership could not be established.

None of Appellant’s neighboring ranches ever filed missing cattle reports with local authorities or the Department, or accused Appellant of stealing them.

Appellant’s missing cattle were found trespassing on another nearby ranch by the Department of Public Safety.

The Dewitt Ranch no longer have any cattle.

Closing Arguments

In closing, the Department argued that persons are not authorized to profit from activities not permitted by law, and further argued that Appellant had still not established ownership of the calves in question in order to be issued the proceeds of their sale. Per the Department, Appellant failed to establish his burden of proof because he failed to obtain DNA testing and/or the requisite affidavits from neighboring ranchers waiving right and title to the calves at issue. The Department opined that because there are no statutory exceptions applicable to the underlying facts of the matter, Appellant cannot be granted any relief.

In closing, Appellant opined that the Department failed to follow the spirit of the law and made it impossible for him to establish ownership of the calves at issue due to their sale. Appellant argued that withholding the proceeds of their sale amounted to an unlawful taking of his property, and thus violated his Constitutional rights. Appellant further argued that because the Department inconsistently applied the underlying statutes, his ensnarement was unjust.

CONCLUSIONS OF LAW

The Department has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 3-1201, et seq. The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092, et seq.

Appellant bears the burden of proof to establish ownership of the cattle in question, and therefore ownership of the proceeds stemming from the sale of said livestock by a preponderance of the evidence. The Department bears the burden to establish factors in mitigation by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Ariz. Rev. Stat. § 3-1341 provides that it is illegal for a person to transport or convey livestock without a Departmental livestock inspection.

Ariz. Rev. Stat. §§ 3-1331, 3-1334, and 3-1371 provide that the Department may inspect and seize cattle whose ownership is in question during an inspection, and that ownership is called into question when the livestock is freshly branded and not found with its mother.

Ariz. Rev. Stat. §§ 3-1402 and 3-1404 provide that a person may receive the proceeds of the sale of seized livestock, less expenses incurred, if they provide proof of ownership within 1 year of the sale.

Statutes shall be liberally construed to affect their objects and to promote justice. In interpreting a statute, “[w]e first consider the language of the statute and, if it is unclear, turn to other factors, including ‘the statute’s context, subject matter, historical background, effects, consequences, spirit, and purpose.”

Statutes should be interpreted to provide a fair and sensible result. “In applying a statute its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”

The Tribunal is required to apply equitable principles when rendering decisions. The application of equity entails offering a remedy to avoid an unconscionable or unjust result.

The material facts in the case at bar are clear. Because the calves Appellant brought to auction in 2021 unquestionably had fresh brands, the legitimacy of their ownership was immediately called into question. As such, Appellant was afforded two means by which he could prove that they belonged to him: (1) undergo DNA testing of the calves and their mother(s), or (2) obtain signed affidavits from all neighboring cattle ranches waiving ownership interests of the calves in question. The record clearly reflects that Appellant failed to comply. Any assertions by Appellant decrying these regulatory requisites are immaterial. There is no evidence in the record that excuses or otherwise justifies Appellant’s lack of compliance in this matter.

Therefore, because Appellant did not provide proof of ownership of the calves within 1 year of their sale, he also did not establish eligibility or entitlement to receive the proceeds of their sale.

Thusly, Appellant’s appeal must be denied.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that Appellant’s June 01, 2023, appeal be denied and dismissed.

NOTICE

Pursuant to Ariz. Rev. Stat. § 3-1376(C), an appeal from of a Final Agency Action may be taken and shall be governed by the same rules that apply to appeals from justice courts or from the superior court, as the case may be.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.

Done this day, November 13, 2023.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Paul Brierley, Director

c/o Marty Suter, Program Manager

Department of Agriculture

1688 W. Adams St.

Phoenix, AZ 85007

Deanie Reh, Esq., Assistant Attorney General

James Rolestead, Esq., Assistant Attorney General

Office of the Attorney General

2005 N. Central Ave.

Phoenix, AZ 85004-1592

[email redacted]

Cooper DeWitt, Appellant

1870 N. Pendleton Dr.

Rio Rico, AZ 85648

[email redacted]

By: OAH Staff